When asked by the Globe, two of the leading Democratic contenders for the Massachusetts’ top law enforcement post didn’t come out in support of expanding the current wiretapping law, a change backed by Governor Charlie Baker and all of the state’s elected district attorneys.
Labor attorney Shannon Liss-Riordan said she shares the profound worries of civil libertarians that an expansion of the law could lead to unintended consequences and an infringement on privacy protections. “I’m with the ACLU,” she said, referring to the American Civil Liberties Union, which opposes expanded wiretap usage.
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Former Boston city councilor Andrea Campbell declined to even comment on the issue, with a spokeswoman refusing to answer questions about the candidate’s stance.
But Quentin Palfrey, who worked in the attorney general’s office under Martha Coakley, said it makes sense to update the law because the way people communicate has “changed dramatically” since it was written.
Palfrey said he’s “not embracing what Baker has proposed,” but he would support expanding the set of communications devices that could be monitored and the list of crimes law enforcement could investigate using wiretaps.
“We just have to get the balance right,” he said in an interview.
Whoever wins the Sept. 6 primary election will face Republican Jay McMahon, a trial attorney, in the general election on Nov. 8. McMahon, who lost to Healey four years ago, did not respond to multiple requests for comment.
While the wiretapping issue may seem narrow, the candidates’ stances serve as a bellwether for where they stand on privacy and other freedoms, said civil liberties lawyer Harvey Silverglate.
“The question is whether the people of Massachusetts, through its elected representatives, want to expand police powers,” said Silverglate, who opposes an expansion of the wiretap law. “It’s a political judgment.”
Martin Healy, chief legal counsel and lobbyist for the Massachusetts Bar Association, echoed the sentiment, and said he hopes the next attorney general will “bring a great sensitivity” to concerns raised by those who are wary of expanded police powers.
“How they approach the wiretap law is a good indicator of how they will handle other privacy and individual rights issues,” he said. “Any chief law enforcement officer is going to have a tendency to come from a strong law and order-type of position. However, we hope that there has been a lot of education done . . . and that they perhaps proceed with caution before any expansion is sought.”
This past year, Healey, Baker, and the state’s 11 elected district attorneys made an unsuccessful attempt to once again persuade legislators to expand the law.
Baker’s most recent proposal would expand the authority of law enforcement to use wiretaps to investigate certain serious offenses that have no connection to organized crime, such as murder, rape, and possession of explosive devices. It also proposed updating definitions to reference electronic communications not in use in 1968, like wireless devices and cellphones.
Under the current law, only the attorney general and the district attorneys have the ability to request a judge’s approval of a wiretap warrant, which requires that a wiretap be used “as a tool of last resort” when there is a link to organized crime.
Healey’s campaign declined to comment on what stance she would take as governor, and whether she would continue to push for an updated law. A spokeswoman referred a reporter to a statement from January, where Healey told the Globe in her official capacity that the “the wiretap law needs updates to better match the violent crimes we see in our investigations.
Francis Bellotti, 99, told the Globe in an interview that he had supported overhauling the state’s wiretap laws when he was attorney general from 1975 to 1987.
In 1992, Republican governor Bill Weld, with the support of the attorney general, Democrat Scott Harshbarger, pushed a set of bills that would have addressed what they considered gaps in prosecutorial powers, including giving prosecutors the authority to use wiretaps in criminal investigations beyond those involving organized crime.
The update would have expanded the authority of law enforcement to use wiretaps to investigate certain crimes such as murder, rape, human trafficking, and firearms offenses.
Civil liberties advocates, who have long opposed the expansion of the state’s ability to listen in on private conversations, characterize any broadening of the law as an unacceptable overreach that would open the door to undue surveillance in communities that are historically overpoliced.
Critics of the proposal, such as the ACLU of Massachusetts, have called the current law “among the best in the nation.”
Proponents of the proposal say an update is common sense, and that technological advancements and changes in types of crimes being committed demand new language in the law.
They also point to a 2011 Supreme Judicial Court decision that concluded secretly recorded evidence could not be used against a man who was allegedly caught on tape admitting to a Brockton murder. The court suggested that lawmakers delete five words from state law — “in connection with organized crime” — so that state and local law enforcement could use what federal authorities have learned is an effective tool in solving cases.
In a 2017 statement, Healey said expanding the state’s wiretap law “has been a priority of my office for years.”
Samantha J. Gross can be reached at firstname.lastname@example.org. Follow her on Twitter @samanthajgross.
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